SURINDER KUMAR Vs. OM PARKASH

JUDGEMENT

(1.) THIS is a petition filed by two persons, namely, Surinder Kumar and Ashok Kumar under Sections 397 and 482 of the Code of Criminal Procedure read with Article 227 of the Constitution for quashing the order dated 5 -9 -1994 passed by the learned Sub -Divisional Judicial Magistrate, Rampur in a complaint petition filed under Sections 379, 447 of the Indian Penal Code. The impugned order, which has been passed on the complaint petition itself vide Annexure P -7 runs as follows: Heard. Let this complaint be forwarded to S.H.O., P.S. Rampur for investigation under Section 156(3), Code of Criminal Procedure. Heard Mr. B.N. Misra, learned Counsel for the Petitioners and Mr. N.K. Sood, learned Counsel for the Respondent.

(2.) THE learned Counsel for the Petitioners has submitted that there are disputes both Civil and Criminal between the parties and as the Petitioners are in possession of the land in question, no prima facie case has been made out in the complaint petition filed by the Respondent. That apart, according to the learned Counsel for the Petitioners, the order is bad in law inasmuch as under Section 202 of the Code of Criminal Procedure, the learned trial Court should send the complaint petition for investigation only after examining the complainant and other witnesses present. In this connection, the learned Counsel has drawn attention of this Court to Clause (b) of Section 202(1) of the Code of Criminal Procedure. It runs as follows: (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.

(3.) SUB -section (3) of Section 156 empowers the Magistrate, who can take cognizance of any case under Section 190, Code of Criminal Procedure to order investigation through police.